Statement of Silverglate & Good Concerning the Dismissal of the Indictment in United States v. David M. LaMacchia The United States District Court in Boston today dealt a sharp setback to the Department of Justice's longstanding effort to use the broad and vague federal interstate fraud statutes to punish conduct that the Congress has not criminalized by duly-enacted legislation. The Court has at the same time struck an important blow for the proposition that First Amendment free speech and free press rights must be considered as the Department seeks to enforce its own agenda in the Age of Cyberspace. District Judge Richard G. Stearns today dismissed the indictment brought by United States Attorney Donald K. Stern against Massachusetts Institute of Technology student David M. LaMacchia, growing out of LaMacchia's alleged maintenance of a computerized bulletin board system on which others placed and copied computer software without paying copyright licensing fees. LaMacchia's role, at most, was to set up and maintain the system that enabled others to copy software. Furthermore, as Judge Stearns noted, the government did not so much as claim "that LaMacchia sought or derived any personal benefit" from the operation of this bulletin board. Judge Stearns agreed with the defense contentions that (1) the copyright statute controls the question of whether LaMacchia committed a crime, (2) his activity was "not criminal conduct under [the] Copyright Act," and (3) the government must tread carefully when seeking to bring prosecutions like this one because of "the limited nature of the property interest conferred by copyright [stemming] from an overriding First Amendment concern for the free dissemination of ideas." [emphasis supplied] If and when Congress decides to criminalize conduct such as LaMacchia is alleged to have engaged in, the Department of Justice will be free to bring prosecutions against systems operators of such bulletin board systems. Judge Stearns correctly warns that if the government were allowed to bring this prosecution, the same theory could also be used "to criminalize the conduct of not only persons like LaMacchia, but also the myriad of home computer users who succumb to the temptation to copy even a single software program for private use." "It is not clear," concluded Judge Stearns, "that making criminals of a large number of consumers of computer software is a result that even the software industry would consider desirable." It is not, we would add, likely that Congress would readily agree with the Department of Justice that this result is desirable, and we doubt that the Department will be able to persuade Congress to enact such legislation. We are pleased that the Court recognized something that the United States Attorney did not -- that this country remains a nation under law, and that the law is written by the Congress, not by federal prosecutors. We are delighted, too, that David LaMacchia will now be able to get on with his life and his education. Harvey A. Silverglate has@world.std.com Home tel. (617) 661-9156 Sharon L. Beckman slb@world.std.com Andrew Good agood@world.std.com SILVERGLATE & GOOD 89 Broad Street, 14th floor Boston, MA 02110 Voice (617) 542-6663 Telecopier (617) 451-6971 David Duncan Zalkind, Rodriguez, Lunt & Duncan 65A Atlantic Avenue Boston, MA 02110 Voice (617) 742-6020 Telecopier (617) 742-3269 Attorneys for David M LaMacchia Boston, MA 29 December 1994